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1998 DIGILAW 438 (KER)

Yusuf v. Sakkeena

1998-09-14

D.SREEDEVI, P.A.MOHAMMAD

body1998
Judgement MOHAMMED, J.:- This appeal arises from an order of the Family Court, Thrissur in a proceeding under Sections 7 and 25 of the Guardian and Wards Act, 1897 (hereinafter referred to as 'the Act'). The father of three minor children, who was the respondent before the Court below, is the appellant before us. The respondent-mother filed O.P. No. 743 of 1997 before the Court below seeking the custody of the three minor children. 2. The case of the respondent-mother is that her marriage with the appellant took place in the year 1985 and the three minor children shown in the petition were born out of the wedlock. The minor children were living with the mother till 14-9-1997. The two minor girls were studying in the VI standard in St. Joseph's High School, Enamakkal and the boy was studying in the II standard in G.M.L.P. School, Enamakkal. They were also attending to the instructions at Madrassa at Kettungal. From the custody of the mother, the children were forcibly taken away by the appellant's uncle and thereafter they were under the custody of the appellant. Since the children were forcibly removed from the custody of the mother, their education hindered. The children were not sent to the school or to the Madrassa and the father was not attending to the affairs of the children. Therefore, in view of the paramount interest and welfare of the minor children, the respondent-mother filed the above petition before the Court below. 3. The father of the minor-children appeared before the Court below and filed counter. His case is that he had divorced the mother of the children in October, 1997 and the allegations in the petition that he was not attending to the affairs of the children were denied. In sum, the contention of the appellant is that the interests of the minors had been sufficiently looked after and safeguarded by him and therefore the application should not be allowed. 4. The Family Court, after recording the evidence of the appellant and the respondent, came to the conclusion that the interests and welfare of the children require that the mother should be given their custody. In that view of the matter, the application was allowed and the mother was granted the custody of the minor children. The Court further directed the appellant to hand over custody of the children to the mother. In that view of the matter, the application was allowed and the mother was granted the custody of the minor children. The Court further directed the appellant to hand over custody of the children to the mother. Hence, the present appeal has been filed by the father of the minor children. 5. Heard the learned counsel appearing for the appellant and the respondent. 6. Since the parties are Muslims, the personal law applicable to them will have to be examined. Section 352 of Mulla's Principles of Mohammedan Law deals with the right of the mother to custody of infant children. The said section provides, thus :- "The mother is entitled to custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband, in which case the custody belongs to the father." It is an admitted case that the mother of the minor children has not contracted a second marriage. On the contrary, it has come out in evidence that the father of the minor children had contracted a marriage after divorcing the mother of the minor children. Hence the mother is entitled to the custody of minor children. Section 352 aforementioned will have to be read along with Section 17 of the Act. Section 17(1) of the Act provides thus : "In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject appears in the circumstances to be for the welfare of the minor." When Section 17(1) of the Act is read conjunctively with the provisions contained in Section 352 aforementioned, what would reveal is that the paramount welfare of the minors is the sole consideration for allowing or disallowing an application for custody of the minor children. In this case, the Court below has fully evaluated the evidence on record and came to a positive conclusion that the interests and welfare of the minor children would be sufficiently safeguarded by the mother. No tangible reason has been brought before us to have a different conclusion on this question. In this case, the Court below has fully evaluated the evidence on record and came to a positive conclusion that the interests and welfare of the minor children would be sufficiently safeguarded by the mother. No tangible reason has been brought before us to have a different conclusion on this question. The appreciation of the evidence available in this case would not take us to have a different view from that arrived at any the Court below. Therefore, we are of the view that the paramount interests and welfare of the minor children in this case would be sufficiently safeguarded by the mother, if the custody of the minor children is given to her. We do not see any ground for interference in this appeal. 7. However, the counsel for the appellant pleaded that the appellant may be allowed to visit the children as and when necessary. In other words, the visitation right of the appellant has to be recognised. It may not be proper for this Court to deny the father of the minor children such right even in a case where the custody is handed over to the mother in the interests and welfare of the minor children. Therefore, we recognise the visitation right of the appellant and allow him to move the Court below as and when he wants to exercise his right. The Court below will pass orders on merits on such occasions. 8. The counsel for the appellant voiced an apprehension that even if this Court passes an order to hand over the custody of the minor children to the mother, the children may prefer to remain with the father and in such circumstances, the Court has to suggest a remedy in that behalf. In the context of this submission, we direct the Court below to execute the order for handing over the custody of the minor children to the mother as and when the respondent moves in that behalf. If such petition is already pending, or any such petition is filed in future, the Court below shall take appropriate steps in that behalf in view of the direction given above. The M.F.A. is dismissed, subject to the above directions and observations. No order as to costs. Appeal dismissed.